A change in Saskatchewan’s distracted driving law has gone too far by making it illegal to hold a cellphone while behind the wheel, a leading defence lawyer says.

“That’s a mistake … It’s overkill because they haven’t thought enough about it,” said Andrew Mason, president of the Saskatoon Criminal Defence Lawyers Association.

The amended law, which comes into effect on Jan. 1, failed to leave any defence for an accused who is not guilty of act the legislation targets, Mason said.

“For people who are truly innocent, they should have a defence… It’s the defence of holding a cellphone. People can hold a cup of coffee, they can twiddle with the radio, put a CD in or take it out and that’s not an offence, but holding a cellphone is.”

“What they should do is say that evidence of a person holding a phone is, in the absence of evidence to the contrary, proof that the person was using the phone… and put the onus back on the accused to say, ‘here’s what I was doing,’” similar to the defence for impaired driving charges against a drunk person in the front seat who didn’t intend to drive, Mason said.

“There should be a fair and reasonable defence that would not apply to many people, but it would take away the unfairness for anyone that is not violating the spirit of the legislation to be able to have a defence,” he said.

The amendment to Section 241.1 of the Traffic Safety Act dictates that holding a cellphone while driving will be an offence that attracts a $280 fine and adds four licence demerit points. Get caught a second time within a year, and your vehicle could be impounded for a week.

“That’s going to reinforce the message that any use of a cellphone, whether you’re holding it, you’re using it or you’re playing music on it or anything you’re doing on that phone, it’s dangerous and that your attention needs to be focused on the road,” said SGI spokesperson Kelly Brinkworth.

The change came at the request of police, Brinkworth said.

Since 2010, it has been illegal in Saskatchewan to use hand-held cellphones to talk, text, email or surf the Internet while driving. That year there were 1,821 convictions across the province. By 2014, that figure had climbed to 4,938.

Police saw that some people successfully fought the tickets in court, resulting in Saskatchewan case law that placed a greater onus on law enforcement to prove accused drivers were actually using the phones as described in the legislation, said Insp. Dale Solie of the Saskatoon Police Service.

As a result, Saskatoon police reduced the number of tickets they issued by 58 per cent — to 948 in 2015 from a peak of 2,269 in 2013.

Mason is disappointed the government didn’t consult defence lawyers when drafting the change.

“It’s important to have groups such as the criminal defence lawyers consulted because there’s a real issue here about fairness and the perception of the law for people who have been accused and have not violated the spirit and intent of the law and that voice should be heard,” he said.

Texting while driving is a “ridiculous practise” that needs to stop, he said.

“Everybody who’s doing it, if they can be, they should be charged and there should be a very high conviction rate, but for people who are not guilty of that, the penalty is very serious. It can mean the loss of someone’s livelihood. There should be some legal means of going to a judge” to prove they aren’t guilty, he said.